Fraught Remedies

When negligence thwarts parental efforts to select for socially salient traits like sex, race, and disability, compensation risks cutting against public safety or morality. Mandated cash payments for the wrongful defeat of attempts to choose a child to be deaf or male or white have the potential to undermine public commitments to newborn health, gender balance, or racial equality. This chapter argues that these concerns will only under exceptional circumstances rule out any remedy for confounded procreation. Even in rare cases for which recovery is not valid but void, courts should still grant nominal damages for generalized reproductive injuries—to deter professional misconduct and vindicate broader interests in offspring selection. In cases involving the failure to screen or diagnose some offspring condition, it’s not just private individuals or couples deciding what’s best for their own lives. Tort awards can impart an existential insult to people whose conditions were singled out for elimination—that verdict reflects the binding conclusion that the judge or jury reaches in view of specific facts and applicable law. But that expressive power shouldn’t immunize professional wrongdoing that thwarts eccentric offspring selection. Concerns about “quality control” are essentially contested—whether framed in terms of parental love or playing God, these visions of reproductive restraint don’t reflect social consensus. The not-so-distant history of racial ordering across family units comes closer to voiding complaints for confounded race. But courts should still provide limited recovery, with explicit caveats—to affirm generic interests in offspring selection, while disclaiming any racial component.

Introduction

A recent survey of half of all U.S. fertility clinics found that more than one in five misdiagnosed, mislabeled, or mishandled reproductive materials. These errors can’t be chalked up to reasonable slips of hand or lapses in judgment as often as deficient quality controls; and no statute or doctrine vindicates these injuries, or says they matter as a matter of law. Victims can’t point to any physical or financial harm they’ve suffered. Some courts point out that reproductive plans are easy to invent and hard to verify. Others wonder why plaintiffs whose plans were thwarted didn’t just turn to abortion or adoption instead. And most are unwilling to cast a child’s birth as a legal injury. The American legal system treats confounded procreation less like mischief than misfortune, closer to a star-crossed romance or a losing ticket in the natural lottery—the kind of adversity that, however fateful, you have no choice but to steel yourself against and move on from: You can’t always get what you want. This indifference is surprising in a country that’s constitutionalized rights to abortion and birth control since the 1960s and 1970s. But even this “fundamental rights” status hasn’t kept states from aggressively restricting access to abortion and contraception, and the Court hasn’t extended these reproductive freedoms to practices that introduce donors or surrogates into the mix. Besides, constitutional privacy applies only to misconduct by government actors: It offers no protection against wrongdoing by any nonstate clinic, pharmacy, or hospital.

Procreation Confounded

Procreation is confounded when clinical professionals misdiagnose, misrepresent, or switch reproductive cells or entities. These errors lead patients to initiate, continue, or terminate pregnancies in ways that thwart their efforts to have a child of one kind or another: How serious is that reproductive injury? Do its benefits outweigh its harms? What are the chances of it manifesting within certain windows of time and at varying levels of severity? How likely is it that misconduct is what caused procreation to be confounded? Is some other factor responsible in addition or instead? To what extent was genetic randomness or diagnostic uncertainty to blame? The seriousness of that harm depends on its foreseeable impact on people’s lives—injury severity is an objective inquiry that begins by asking what kind of child the plaintiffs wanted and why. The variable expression of medical conditions or other targeted traits ratchets up the guesswork to forecast how a defendant’s negligence that thwarted their prenatal selection can be expected to affect the plaintiff. But all this uncertainty needn’t keep courts from assessing how serious confounded procreation is in particular cases: Just because any such determination is bound to admit of some arbitrariness doesn’t mean injury severity can’t be worked out in a principled and systematic way. For health conditions, relevant factors include foreseeable implications for offspring lifespan, impairment, medical care, and treatment options. Courts should reduce dollar awards by however much confounded procreation can be expected to simultaneously benefit plaintiffs, depending on its associated reasons and repercussions.

Procreation Deprived

When professional negligence renders sex cells unusable or reproductive capacities inoperative, shattered dreams of pregnancy and parenthood find little solicitude under American law. Our legal system fails to recognize reproductive suffering from which a plaintiff’s body and bank account emerge unscathed—because tort law usually compensates for intangible losses only if they’re closely connected to material ones. But people deprived of procreation can’t point to any bodily harm or financial setback that’s tied directly to the injury they’ve suffered. Claims almost always fail because patients don’t incur any property damage (eggs and embryos aren’t considered property) or physical intrusion (aside from whatever medical procedure they freely agreed to). Besides, courts point out, even if fertility treatment goes as planned, patients might not have been able to conceive or carry a pregnancy to term anyway—and they can still adopt. Judges who don’t dismiss these suits outright keep a tight rein on damage awards; these courts miss the centrality of procreation to aspiring parents and the magnitude of its wrongful deprivation. Still, badly behaving specialists shouldn’t be liable for the infertility that patients already suffered from, or other reproductive complications they would have anyway, no matter what quality medical care they received. Probabilistic recovery offers a principled way to compute damages for the wrongful destruction of gametes or embryos under these circumstances. The availability of adoption doesn’t negate this reproductive loss or the need for our laws to redress it. Genetic affinity assumes profound meaning in American family life and law.

Damage Awards

Two questions should guide award determinations for procreation deprived, imposed, and confounded: First, how serious is a plaintiff’s reproductive loss? The answer goes to the nature and duration of that loss’s practical consequences for the plaintiff’s life. The second question asks how likely any future loss is to come about, and the extent to which its cause can be traced to a defendant’s misconduct, as opposed to some other factor for which the defendant isn’t to blame. The severity of reproductive injuries calls for objective inquiry into how a reasonable person in the plaintiff’s shoes would be affected. Permanent injuries tend to be more severe than temporary ones because they can be expected to cause greater disruption to major life activities like education, work, marriage, friendships, and emotional well-being. The question isn’t what plaintiffs would have done if they’d known that negligence would dash their efforts—it’s how much those injuries can be expected to impair their lives, from the perspective of their own ideals and circumstances. The causation element of this damages inquiry asks: What are the odds that plaintiffs would have suffered the complained-of reproductive outcome if it hadn’t been for the professional misconduct? Preexisting infertility, contraceptive user error, and genetic uncertainty can deprive, impose, or confound procreation just the same in the absence of any wrongdoing. Probabilistic recovery starts with the award total corresponding to the absolute loss in question, and reduces it by the extent to which the loss was caused by outside forces.

Missing Protections

No governmental agency or authority seriously polices reproductive negligence. The best practices set forth by industry organizations are completely voluntary and routinely ignored, and there isn’t even any reliable or comprehensive system to track the wrongful thwarting of family planning. The breakneck pace of reproductive advances isn’t the only reason that test tubes and tube ties have eluded meaningful oversight: Four factors explain this regulatory vacuum. First, many are wary of ceding the state control on any matter involving procreation—red tape would raise prices on valuable services, making it harder for poor people to pay for them. Second is the political economy of reproductive technology in the United States: The free-market origins of infertility treatment let it develop unimpeded by government oversight, in the private sphere of for-profit clinics that function less as medical practices than trade businesses. A third factor that cuts against regulation is its murky electoral implications, even in reliably red or blue districts—fear of fracturing their political bases leads prudent officials to avoid wading into the morass. Fourth and finally is the limited public outcry to address reproductive negligence. Besides, steep costs and selective treatment coverage leaves many patients unable even to fund a legal challenge if things go wrong. State legislatures place damage caps and other barriers in the way of bringing suit. And trials can be a spectacle for plaintiffs wary of exposing personal matters to the public glare of open court.

Conclusion

We’re used to blaming randomness or cosmic injustice when we don’t get the child we want, or when we get the one we don’t. Now cutting-edge interventions promise to deliver us from the vagaries of natural conception and the genetic lottery: Birth control and abortion prevent parenthood; gamete donation and IVF make procreation possible; and prenatal testing can detect debilitating offspring diseases even before pregnancy. These undertakings are still riddled with uncertainty—sometimes things just don’t work out; but that’s no reason to turn a blind eye when bad behavior is at fault. The American legal system protects against professional negligence in other inherently risky activities, from riding in a car to preparing a meal. Courts lay off when fate or accidents are responsible—when deer pop out onto dark roads, or homemade chicken is undercooked. But the law doesn’t hesitate to respond when auto crashes are traced to defective brakes, or food poisoning to unsanitary farming. Reproductive medicine and technology shouldn’t be any different—the stakes are high, and important interests hang in the balance. Just because would-be parents are accustomed to disappointment—because many of us have resigned ourselves to spontaneous miscarriage, or unplanned pregnancy, or an unexpected roll of the genetic dice—doesn’t make those outcomes any less serious, or misconduct that produces them any less worthy of recovery. Reproductive negligence today goes undeterred, unreported, and unredressed—the architecture of rights for procreation deprived, imposed, and confounded equips us to rethink and resolve the controversies that lie ahead.

Procreation Imposed

A negligently failed abortion, birth control, or sterilization foists on plaintiffs the very pregnancy or parenthood they enlisted professional assistance to avoid. Courts refuse to remedy these reproductive injuries on the ground that babies are blessings. But this repudiates plaintiffs’ moral agency to decide what’s good for their own lives. It’s specious and patronizing to think that all unsuspecting parents will come to be glad that misconduct rode roughshod over their decisions to be sterilized, use contraception, or have an abortion. And courts shouldn’t dismiss complaints in which causation is uncertain, provided that plaintiffs can show that negligence increased the chances of unwanted procreation by a non-insignificant degree. But it’s only fair to hold defendants liable for whatever portion of the reproductive injury their negligence caused, or the corresponding chance that their misconduct is to blame for causing it. Plaintiffs shouldn’t be denied the compensation they’re entitled to just because they exercised their protected liberties to decline abortion or adoption. Insisting that negligence victims cut off ties with a fetus or child as a condition of recovery disrespects their interest in making reproductive decisions for themselves. Forcing their hand yet again only exacerbates that injury to such a meaningful part of their lives that specialists had previously given them legitimate reason to expect. Raising the unplanned child may be worse for them than the childless future they’d hoped for—but abortion or adoption may be worse than either of those.

Courthouse Claims

Existing legal claims have a hard time trying to remedy reproductive wrongs, but procreation patients and their committed partners should be able to seek meaningful recovery for professional negligence that thwarts their legitimate family plans. I distinguish three kinds of unwanted reproductive outcomes: (1) no baby, where victims had sought one; (2) any baby, where the goal was none at all; and (3) a particular type of baby, where parents undertook efforts to have one with different traits. Our legal system should recognize each of these complaints—that’s what this chapter recommends. The first tort action that I propose is for negligently frustrated attempts to pursue pregnancy or parenthood; the second concerns dashed efforts to avoid those activities and roles; the third is for offspring selection gone amiss. I call these the rights of procreation deprived, procreation imposed, and procreation confounded. Each reflects the responsibilities that certain individuals or institutions owe to preserve the reproductive interests of others. Formal obligations in matters of pregnancy and parenthood is what sets professional negligence apart from otherwise similar transgressions at the hand of intimate partners. Fertility doctors and other healthcare practitioners assume practice-specific duties of care that nonspecialists do not. Committed partners should be entitled to sue for reproductive negligence as well, not just patients who undergo medical treatment themselves. Extending procreation rights to this committed partner recognizes the impact these wrongs have on their family plans and the life they share—courts should allow recovery for that one, clearly identifiable, additional claimant.

Litigation’s Limits

Even negligence victims who can afford the legal fees often don’t think that suing is worth the risk, given what any good lawyer will tell them is a slim chance of recovery. Reproductive plaintiffs have had little success trying to shoehorn their complaints into a grab bag of ill-suited actions under available theories of civil liability. Some of these are cramped, like deeming lost embryos “property” or “persons”; others are jarring, as when they call a child’s birth or life “wrongful.” Courthouse claims for medical malpractice and emotional distress require showing some physical or economic harm that procreation plaintiffs can’t point to when their test results get switched or sperm samples go missing. These misadventures fall through the cracks of a legal regime that’s reluctant to recognize reproductive losses as real or serious. Facilities make few assurances that would enable victims to sue for breach of contract, and doctors are careful to decline promising any result beyond the safety of patients directly under their care—so there’s seldom any agreed-upon clause for courts to enforce against badly behaving defendants. Besides, most reproductive professionals insist that patients sign clauses shielding them from liability, whether express or implied. Half of all states bar “wrongful birth” suits against medical professionals who fail to inform pregnant women, or give them bad advice about fetal development and prognosis. Even states that allow this malpractice action fail to capture the deeper harms that reproductive negligence inflicts—and they rarely compensate psychological or dignitary harms, standing alone.